In Depth

A divided Indiana Supreme Court ruled Wednesday that a man convicted of rape on retrial was unconstitutionally prosecuted
twice for the same offense, but the court upheld denial of post-conviction relief.

The court affirmed denial of post-conviction relief from a Class B felony rape conviction in Juan M. Garrett v. State of Indiana, 49S04-1207-PC-431, which also had been affirmed by the Court
of Appeals. Garrett’s conviction in a bench trial followed a jury trial in which he was cleared of one rape count and
the jury hung on a second. Garrett was accused of twice raping the same woman who claimed he and two other men held her against
her will and sexually assaulted her.

“We hold that the ‘actual evidence’ test announced in Richardson v. State, 717 N.E.2d 32 (Ind.
1999) is applicable to cases in which there has been an acquittal on one charge and retrial on another charge after a hung
jury. We conclude however that the post-conviction court properly denied the petitioner’s claim that counsel rendered
ineffective assistance in failing to pursue this issue at trial or on direct appeal,” Justice Robert Rucker wrote for
the majority, joined by Justices Steven David, Loretta Rush and Chief Justice Brent Dickson.

“We acknowledge that in a different factual context this modified test may prove challenging in its application. But
here the facts are fairly straightforward. In essence on retrial the State presented the same evidence of Rape A — the
first-in-time rape — on which the State relied in the first trial and upon which the jury found Garrett not guilty.
And given the relative paucity of evidence on retrial concerning Rape B — the second-in-time rape — we conclude
there is reasonable possibility that the evidentiary facts used by the jury in the first trial to establish the essential
elements of Rape, for which Garrett was acquitted, may also have been used on retrial to establish all of the essential elements
of Rape for which Garrett was convicted,” Rucker wrote.

“We conclude therefore that Garrett was twice prosecuted for the same offense in violation of article 1, section 14
of the Indiana Constitution.”

Justice Mark Massa concluded in the result but argued Garrett was not a victim of double jeopardy.

“The record is clear that, in this second trial, the trial court, prosecution, and defense all understood that the
two separate rapes were charged in chronological order and that Garrett was being retried for the alleged ‘Rape B’
only,” Massa wrote. “This does not mean that the victim had to confine her testimony in the second trial solely
to Rape B, omitting all details of what transpired earlier in the evening; our jurisprudence does not require such a stilted,
redacted and devoid-of-context presentation. (How, for instance, could she testify she was raped ‘again’ without
mentioning the first rape?)

“We trust trial judges to separate wheat from chaff, permitting them, for instance, to render a verdict even after
being exposed to inadmissible evidence that would irreparably taint a lay jury,” Massa wrote. … “I am confident
that the experienced trial judge in this case performed just such a threshing here.”

But the majority noted Richardson requires only the reasonable probability that the facts a trial judge relied on
to convict were the same ones the jury relied on in the previous trial.

“If we were to accept the dissent’s position, then that would mean there could never be a Richardson
violation where the second trial after an acquittal is before the bench rather than a jury. In our view this goes beyond ‘judicial
temperance’ and borders on judicial infallibility,” Rucker wrote for the majority.

“It is ‘reasonab[ly] possible’ that even an experienced trial judge can make a mistake. That is not to
say that a mistake was in fact made in this case; but there is a reasonable possibility that is so. This is all Richardson
requires,” the majority held.

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Conversations

2 Comments

Justice in America has become and been a joke for a long time. Ever since I was a kid all a woman had to do was point and
say he raped me and that man's life would soon be destroyed. Recently more than 20 men in one county in Texas doing time for
sex crimes were exonerated and released after doing more than 300 years collectively. 300 years of human life wasted away
like garbage because of lies that ignorant prosecutors and judges swallow like suckers.

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